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AILA Testimony on the Impact of Visa Approval Backlogs on Small Business

AILA Doc No. 03060644 | Dated June 4, 2003

Statement of Palma R. Yanni, American Immigration Lawyers Association
On The Visa Approval Backlog and Its Impact on American Small Business

Before the House Committee on Small Business

June 4, 2003Washington, D.C.

Mr. Chairman and distinguished Members of the Subcommittee, I am Palma R.
Yanni, President-Elect of the American Immigration Lawyers Association (AILA). I
am honored to be here today representing AILA, the immigration bar association
of more than 8,000 attorneys who practice immigration law. Founded in 1946, the
association is a nonpartisan, nonprofit organization and is an affiliated
organization of the American Bar Association (ABA).AILA takes a very broad
view on immigration matters because our member attorneys represent tens of
thousands of U.S. families who have applied for permanent residence for their
spouses, children, and other close relatives to lawfully enter and reside in the
United States. AILA members also represent thousands of U.S. businesses and
industries that sponsor highly skilled foreign professionals seeking to enter
the United States on a temporary basis or, having proved the unavailability of
U.S. workers, on a permanent basis. Our members also represent asylum seekers,
often on a pro bono basis, as well as athletes, entertainers, and foreign
students.

AILA appreciates this opportunity to testify today on the visa approval
backlog and its impact on small business. At no time in memory have the delays
in visa issuance been so acute, nor the impact so profound. Visas that
once took a day now take a month—if you’re lucky. Visas that once took a
month now take a year—if you’re lucky.

How did we get to this point? Largely for two reasons: the introduction
of processes for the sake of having processes, with little regard for their
effectiveness or impact; and inadequate funding for adjudications which if not
properly responded to will leave these backlogs unaddressed. Few would argue
that the introduction of additional security checks and precautions are not
necessary or advisable. But the key is to ensure that all agencies
involved in the checks regard them as a priority, and that the agencies work
together to avoid duplication and minimize error. That has not been the
case.

When we talk about visa issuance, we usually mean the process by which a U.S.
consulate or embassy abroad issues a document that enables a person to apply for
admission into the United States for a particular purpose. As I will
discuss shortly, the delays in the visa issuance process alone can be
monumental. But, in many cases, visas for individuals critical to a small
business cannot be issued until the Bureau of Citizenship and Immigration
Services (BCIS), which used to be the Immigration and Naturalization Service
(INS), has approved an underlying petition.

The problem faced by businesses is that lengthy delays permeate all of these
agencies.

Delays at the Consulate: Let’s start at the consular stage and work our
way backwards through the process. Several factors have made the process
of obtaining a visa so slow that many are opting not to travel to the United
States at all. Indeed, last fall the State Department had to raise its
visa issuance fee by approximately 50% to make up for the shortfall in revenue
created by the dramatic drop in the number of visa applicants.

Security checks account for some of the more dramatic delays in visa
issuance, as some have waited two, three or even eight months or more while the
State Department awaits a reply from other agencies on security
inquiries. Again, few would argue that security scrutiny is
unnecessary. But many of these checks are conducted for reasons that seem
inexplicable. For example, persons coming to engage in activities relating
to fields on the Technology Alert List are subjected to some of the lengthiest
inquiries. But many of the activities on this list push the edges of
credibility as areas of security concern. One can understand the need to
make sure that additional bases are touched when a visitor’s activities will
relate to “Reprocessing irradiated nuclear fuel to recover produced plutonium,”
one of the entries on the list. But, lengthy investigations of applicants
who will engage in activities related to geography or landscape architecture,
also on the list, are less easy to understand.

But beyond the rationality of who is subjected to these lengthy checks is the
question of whether the checks should be so lengthy. Most of the agencies
involved in the Technology Alert checks are entities whose missions do not
include the processing of applications, and therefore do not have the culture of
time-critical response or the understanding of the importance of visa processing
to the United States. As a result, many of these security checks languish
unattended for lengthy periods.

The same phenomenon occurs with respect to FBI checks. The State
Department will not issue a visa until it has heard an affirmative reply on
requests that it submits to the FBI. These requests are rarely based on
actual intelligence information: instead, they have been based on the ethnicity
and demographics of the applicant or on the fact that, when the Department
checked the applicant’s name in its “CLASS” database, there was a “hit”
indicating a possible problem.

Most such “hits” turn out to be nothing: either the applicant happens
to have the same name as someone who is of concern, the entry in the database
relates to something minor that is not a basis for denying a visa, or the entry
is a mistake. But all of these “hits” have to be checked. And, that
often means that the consul must wait for the FBI and CIA to reply on an
inquiry. Again, because the processing of visa applications is not
perceived by these agencies as mission-critical, and because application
processing is not something for which they have seen reason to invest in
systems, replying to these inquiries is often not a priority.

A recent example from my own practice illustrates the problem. In March a
physician who is practicing with a small hospital in a rural, medically
underserved area went home to Central America for a brief vacation. He was
trained in the United States, had received multiple previous visas, and had a
security check done both by BCIS and the Department of State prior to the
approval of his change of status to H. When he went to the U.S. consulate to
obtain a new visa he was told there was a “hit” on his name, albeit with a
different birth date, and he had to be fingerprinted and wait for the FBI to
clear him before the visa was issued. The process took 60 days, and the
community struggled without this desperately needed physician.

The result of all of this? Visa delays.

Add to this the announcement two weeks ago that the State Department will now
interview, with just a handful of exceptions, all nonimmigrant visa
applicants, That announcement was accompanied by an advisory to posts that
they would have to handle this additional workload with existing
resources: no new personnel or facilities would be added. Already,
visa appointments at posts like London and Bern are backed up into mid-July, and
it is expected that interviews at some posts will take months to schedule.

Since the State Department has no system for pre-clearing visa applicants,
the checks that I discussed previously will not even begin until the visa
interview has been held. Thus, we can expect that it will not be long
before it will take nine months or more to get a visa, as is the case already in
some consulates. What small business can wait that long for a needed employee?

As I indicated, all of the above focuses on just the process for obtaining
the visa abroad. If the visitor is going to do any work in the United
States, the company here will first have to petition on his or her behalf with
the BCIS. Delays on this end also are profound: it is no longer unusual
for such a petition to take a year or more to clear the BCIS.

Delays at the Bureau of Citizenship and Immigration Services (BCIS): Like the
consular process, the problems at BCIS stem from several causes. BCIS’s
predecessor, INS, developed a “backlog reduction plan” that was put in place to
reduce the waiting times for the processing of many major types of petitions and
applications. Just when that plan was starting to make inroads into the
backlog, the word came down that no application or petition could be completed
until a check was completed through the Customs Service’s “IBIS” database, which
contains information from a number of law enforcement agencies.

The problem was that this database, long used by INS for security checks, was
not tied in with INS databases. So IBIS checks required a process separate
and apart from the adjudication of the applications and petitions. This
check increased the time spent on each application by anywhere from 10 to 40
percent, depending on the application type. Also, the IBIS checks result
in the same kinds of “hits” as the CLASS checks that were discussed above at the
consulates. The agency must clear each and every hit by contacting the
agency that provided the information, sometimes by having to repeatedly call
local police agencies or other entities until they can get an answer. As a
result, applications with a “hit” can languish for months on end, only to find
in the end that there is no impediment to approval. In my own practice, we have
a case that has been pending since last July where we are certain there is no
basis for the “hit.”

These database difficulties are exacerbated by other problems. There is
no way for the consul or the BCIS to update the databases when they have cleared
a “hit” to indicate this clearance. So, the negative information continues
in the database, often feeding into other databases that will show a “hit” down
the line. Thus, even if the BCIS has ensured that the John Smith showing
in the IBIS system is not the John Smith on the application, it has no means to
notify the IBIS system, or any other agency in the process of this fact.
So, when Mr. Smith goes to the consulate to apply for his visa, very likely the
CLASS system will show a “hit”, and the lengthy clearance process will begin all
over again.

These problems have recently been ever further exacerbated by a March 24,
2003 Federal Register notice in which the Justice Department declared that the
FBI no longer is subject to the Privacy Act requirement that information that it
enters into law enforcement databases be “accurate, relevant, timely and
complete.” Since information can be entered into these databases with no
regard for its accuracy, we can expect even more errors in these databases, with
no real means to correct them.

The database check problems, alone, rendered the backlog reduction plan no
more than a distant dream. But these are not the only factors that have
created nightmarish backlogs at BCIS. For the past several months, BCIS
personnel were pulled from adjudication activities to register citizens of 25
predominantly Moslem countries under a program known as “call-in NSEERS”.
This ethnically-targeted program of questionable national security benefit
absorbed thousands of work hours, thus further setting back efforts to catch up
on backlogs, and in fact causing backlogs to grow.

Backlogs also have been created by a growing “culture of no” within the
BCIS. A memo issued last year by the then-Commissioner of INS, indicating
that there would be “zero tolerance” for INS employees’ failing to follow
procedure, was taken by many adjudicators to mean that they could be punished
for approving cases. As a result, many applications are subjected to
“Requests for Evidence” asking often nonsensical and irrelevant questions.
These requests add weeks, if not months, to the process. A small company
is virtually guaranteed to receive such a Request.

Also, many applications that not along ago were considered easily approvable
are now denied, invoking an appeal process that in itself can take one year or
more. Indeed, many of the applications now being denied are
extensions or similar applications where, on the exact same facts and law, the
request had been approved a couple of years ago. These denials seem to
happen most often to small businesses.

Examples: How acute are these backlogs? A company based on the West
Coast or in the Southeast can expect a petition for an H-1B to take six or seven
months IF there is no Request for Evidence. Since there likely will be
such a request if the petitioner is a small business, the actual
processing time is more like ten months, assuming there is no denial and need
for appeal.

These companies can have their petitions processed much faster—within 15 days
(plus the time for the Request for Evidence)—but that “premium processing” costs
$1,000 extra, an amount that few small businesses can afford.

So, combining delays at the BCIS with delays at the consulate, it can take
companies seven to nine months to obtain a simple H-1B (not long ago considered
a two-month process) in the BEST of conditions: no Request for Evidence,
no database “hits”, no security clearance requirement. But few cases seem
to exist in the best of conditions anymore, so it is now typical for a company
to have to wait more than one year to bring a critical expert to the United
States to work on a project.

Examples of these situations abound:

A Mexican national trying to establish a small business in the United States
that initially would hire about 10 Americans cannot get started because the
owner was faced with a “hit” in the CLASS database, due to an identity error
caused by the double last names commonly used by Mexicans. He had to be
fingerprinted, and the fingerprints sent to the FBI. He’s been told to
expect a minimum of 3 to 4 months for a reply from the FBI. In the
meantime, this business is losing contracts for export work from the intended
U.S. operation. It should be noted that this individual has been issued
three U.S. visas in the past, and has no criminal record.

A California biotech research company submitted an H-1B petition to the BCIS
in November 2002 on behalf of a Russian scientist, to participate in a six-month
collaborative program starting July 1, 2003. The petition was not approved
until May 28, 2003, and now the scientist would face another delay awaiting visa
processing in Moscow, which undoubtedly would include a lengthy “Technical Alert
List” check. But this no longer matters: the project has been
cancelled because this key participant would not be able to arrive on
time. Yes, the company could have paid $1,000 for faster processing, but
as is true for so many small businesses, this extra amount would have demolished
the budget for the project.

A small U.S. business that manufactures forensic document authentication
software is missing key contract bidding opportunities because of the unexpected
wait for a key manager from its overseas parent to obtain a visa interview.

A small company operating small-town behavioral health centers has been
desperately searching for a psychiatrist willing to serve in these areas.
They finally located a doctor who was completing residency training in the
United States, but before they could even petition to the INS/BCIS for him, they
had to have waived a requirement that he return to his home country of Jordan
for two years. That waiver, which first had to be cleared through the
Agriculture Department and then the State Department, took one full year at
those agencies, during which time the State Department conducted a “CLASS”
database check. The company decided it could pay the $1,000 premium
processing fee for the H-1B petition, but this turned out to be wasted money
because the then-INS refused to complete processing of the waiver under premium
processing. The waiver took seven months to clear INS. At the end of
April this year, the petition and waiver were finally approved and the doctor
applied for the visa. He has been told that the visa will take a few
months because the State Department must once again run a security check on
him. This small business, and the small-town communities it serves, have
waited for more than 2 years for this physician, and will still have to wait
several months more.

There is no question that security must be a priority. But that
security must be pursued rationally, and its processes must take into account
the need to keep trade and business flowing. These uncertain economic
times are when we most need America’s leading employers—small businesses—to
flourish. They cannot do so if their position in the international
marketplace is undermined by bureaucratic delays, lack of coordination,
inadequate funding for adjudications, and a culture of “no.”